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RENDERED: MAY 5, 2016
NOT TO BE PUBLISHED
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2015-SC-000201-MR
KEVIN HENDERSON APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. 2014-CA-001717-OA
JEFFERSON CIRCUIT COURT NO. 97-CR-002403
HON. CHARLES L. CUNNINGHAM, JUDGE APPELLEE
JEFFERSON CIRCUIT COURT
AND
COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Kevin Henderson appeals as a matter of right from an order of the Court
of Appeals denying his petition for a writ of mandamus.' Kentucky Rule of
Civil ProcedUre (CR) 76.36(7)(a); Ky. Const. § 115. Henderson seeks the writ to
order the respondent judge to conduct a probable cause hearing to determine if
Cedric O'Neal committed perjury based on his testimony in their joint murder
trial. As such use of a writ of mandamus is improper, we affirm the Court of
Appeals' denial of Henderson's petition.
1 Henderson's pleading is styled as being a request for a writ of prohibition and
writ of mandamus. However, given the facts presented we evaluate his petition as
being more accurately styled as a request for a writ of mandamus. Henderson is not
entitled to either form of writ.
FACTS AND PROCEDURAL HISTORY
In 1997, Henderson and O'Neal were charged with the murder and
robbery of Quinton Hammond. Both were convicted and Henderson was
sentenced to concurrent terms of life imprisonment on the murder conviction
and twenty years' imprisonment on the robbery conviction. This Court
affirmed Henderson's convictions in an unpublished memorandum opinion
rendered on December 20, 2001. 2 Afterwards, Henderson sought post-
conviction relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42
and CR 60.02. Subsequently, both motions were denied.
Following the denial of his post-conviction motions, Henderson filed a
"Motion to Compel Compliance of Rules of Criminal Procedure." In that
motion, Henderson requested that the respondent judge order the Jefferson
County Commonwealth Attorney's Office and the Jefferson County Attorney's
Office to prosecute O'Neal for perjury. Alternately, Henderson requested that
the respondent judge conduct a probable cause hearing into O'Neal's alleged
perjury. The respondent judge denied the motion.
In November 2014, Henderson filed a petition for a writ of mandamus
with the Court of Appeals. The Court of Appeals denied the petition after
determining that Henderson had failed to meet the requisite criteria for the
issuance of a writ. Henderson appealed that order to this Court as a matter of
right.
2 Henderson v. Commonwealth, 1998-SC-000624-MR (Ky. 2001).
2
ANALYSIS
Henderson argues that the Court of Appeals erred in denying his petition
for a writ of mandamus. A writ of mandamus is an "extraordinary remedy
which compels the performance of a ministerial act or mandatory duty where
there is a clear legal right or no adequate remedy at law." Cty. of Harlan v.
Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 613 (Ky. 2002).
A writ of mandamus may only be granted under two circumstances.
First, where it is shown that "the lower court is proceeding or is about to
proceed outside of its jurisdiction and there is no remedy through an
application to an intermediate court." Mahoney v. McDonald-Burkman, 320
S.W.3d 75, 77 (Ky. 2010) (citing Goldstein v. Feeley, 299 S.W.3d 549, 552 (Ky.
2009). The second, and more common, circumstance justifying the writ is
where it is shown "that the lower court is acting or is about to act erroneously,
although within its jurisdiction, and there exists no adequate remedy by appeal
or otherwise, and great injustice and irreparable injury will result if the petition
is not granted." Id. (citation omitted). We review the decisions of the Court of
Appeals in such cases under the abuse of discretion standard. Grange Mut.
Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004), as modified (Dec. 1, 2004).
In the case at bar, Henderson argues that the respondent judge is acting
erroneously, but within his jurisdiction. As such, Henderson must
demonstrate that the respondent judge is acting or is about to act erroneously,
that there no adequate remedy by appeal or otherwise, and that great injustice
3
and irreparable injury will occur if the petition is denied. Henderson has failed
to meet these criteria for the issuance of a writ.
First, the respondent judge has not acted erroneously. Henderson's
request for the respondent judge to conduct a probable cause hearing was
properly denied. As noted by the respondent judge, the circuit court does not
have the legal authority to direct the Jefferson County Commonwealth's
Attorney or County Attorney to prosecute criminal offenses. The power to
charge persons with crimes and to prosecute those charges belongs exclusively
to the executive department. Ky. Const. § 81 (Governor to see that laws are
faithfully executed).
Second, Henderson's writ request is premised on his motion for the
respondent judge to hold a probable cause hearing, a motion that was denied
on September 26, 2014. Henderson could have appealed that adverse ruling
but did not. His failure to pursue a readily available appellate remedy is also
fatal to his request for the issuance of a writ.
Finally, Henderson is unable to demonstrate irreparable injury. As
previously noted, the judiciary does not have the authority to direct the
executive department as to what cases should be prosecuted. It is clear from
the record that the Jefferson County Commonwealth's Attorney and County
Attorney do not intend to pursue perjury charges against O'Neal. To reiterate,
the courts do not possess the authority to direct either the Jefferson County
Commonwealth's Attorney or County Attorney to take action that is solely
within their respective constitutional spheres. As such, Henderson is unable to
demonstrate that great injustice and irreparable injury will result from the
denial of the petition.
As Henderson has failed to meet the criteria for the issuance of a writ of
mandamus, the order of the Court of Appeals denying a writ is hereby affirmed.
All sitting. All concur.
APPELLANT:
Kevin Antwan Henderson, #133117
Kentucky State. Reformatory
APPELLEE:
Hon. Charles Louis Cunningham, Jr.
Judge, Jefferson Circuit Court
COMMONWEALTH OF KENTUCKY,
REAL PARTY IN INTEREST:
Andy Beshear, Attorney General of Kentucky